TROILO et al v. MICHNER et al

Filing 65

OPINION. Signed by Judge Renee Marie Bumb on 11/13/2015. (tf, )

[NOT FOR PUBLICATION]

[DOCKET NO. 38]

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
DOLORES TROILO and KOREY
:
SLOAN, As Administrators
:
of the Estate of DAVEN
:
SLOAN and DOLORES TROILO
:
in her own right and KOREY :
SLOAN in his own right,
:
:
Plaintiffs,
:
:
v.
:
:
RICHARD MICHNER, D.O.,
:
JOSEPH MILIO, D.O., MARY
:
HERRON, N.P., CATHY GERIA, :
A.P.N., COMPLETE CARE
:
HEALTH NETWORK d/b/a/
:
COMPLETE CARE WOMEN’S
:
CENTER, MICHNER & MILIA,
:
P.A., CAPE REGIONAL
:
MEDICAL CENTER,
:
:
Defendants.
:
___________________________:

HONORABLE RENÉE MARIE BUMB
CIVIL ACTION NO. 13-2012
OPINION

APPEARANCES:
LOCKS LAW FIRM, LLC
By: Jennifer L. Emmons, Esq.
801 N. Kings Highway
Cherry Hill, New Jersey 08034
Counsel for Plaintiffs
DRAKE LAW FIRM, P.C.
By: Steven Drake, Esq.
P.O. Box 345
29 North Shore Road
Absecon, New Jersey 08201
Counsel for Defendant Dr. Richard Michner

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CRAMMER, BISHOP & O’BRIEN
By: David J. Bishop, Esq.
508 New Jersey Avenue, Suite B-3
Absecon, New Jersey 08201
Counsel for Defendant Cape Regional Medical Center
OFFICE OF THE UNITED STATES ATTORNEY
By: David V. Bober, Esq.
402 East State Street, Room 430
Trenton, New Jersey 08608
Counsel for the United States
BUMB, United States District Judge:
This is a medical malpractice suit brought by Plaintiffs
alleging negligent obstetrical treatment by Defendants.1
Plaintiffs allege that Defendants’ negligent treatment resulted
in the stillbirth of Plaintiffs’ baby.

Defendant hospital, Cape

Regional Medical Center (hereinafter “Cape Regional”), presently
moves for summary judgment asserting that it cannot be held
liable for the alleged negligent actions of Defendant Dr.
Richard Michner (hereinafter “Dr. Michner”) because Dr. Michner
was an independent contractor with no apparent authority to act
on behalf of the hospital.

1

While pregnant, Plaintiff Delores Troilo received medical
treatment at two different places: Defendant Cape Regional
Medical Center-- which has filed the instant summary judgment
motion-- and Defendant Complete Care Health Network.
As to the Defendant doctors, Dr. Milio was dismissed from
this suit by stipulation dated August 6, 2015. Dr. Michner
remains a Defendant to this suit. He has not filed a motion for
summary judgment. The dispositive motion deadline has passed.
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For the reasons stated herein, the Motion will be denied.
The summary judgment record raises sufficient fact questions
concerning apparent authority.

If this case proceeds to trial,

the issue shall be submitted for jury determination via special
interrogatories.

I.
Plaintiff Dolores Troilo was pregnant from December 2010 to
July 2011.

During Ms. Troilo’s pregnancy, she was treated by

Dr. Michner on only two occasions. (Troilo-Sloan Dep. p. 90)
The first occasion was June 28, 2011, after Ms. Troilo had
fallen on her stomach. (Id.)
The second occasion was July 3 through 4, 2011, when Dr.
Michner performed the stillbirth delivery of Plaintiff’s baby.
(Id. at 92)
On both occasions, it is undisputed that Ms. Troilo was
treated by Dr. Michner at Cape Regional.
Ms. Troilo received treatment at Cape Regional several
other times during her pregnancy.

Ms. Troilo’s medical chart

demonstrates that she was treated at Cape Regional on January
12, 2011; February 26, 2011; April 13, 2011; June 13, 2011; June
18, 2011; June 28, 2011; and July 3, 2011. (Pls.’ Opp’n Summ.
Ex. D)

3 

On three of her visits to Cape Regional, Ms. Troilo signed
forms giving her consent and authorization for treatment at the
hospital. (Ex. E, F, and G to Def.’s Mot.)

Each form has a

section entitled “Independent Physicians,” stating the
following:
I understand that the physicians on the staff of
CAPE REGIONAL MEDICAL CENTER are not agents or
employees of the medical center but, rather are
independent physicians who have been granted the
privilege of using its facilities for the care
and treatment of their patients.
I HAVE READ THIS FORM OR HAD IT FULLY EXPLAINED
TO ME. I AM SATISFIED THAT I UNDERSTAND ITS
CONTENTS AND SIGNIFICANCE. I UNDERSTAND THAT THE
PHYSICIANS PROVIDING MY CARE ARE NOT EMPLOYEES OR
AGENTS OF THE HOSPITAL.
(Ex. E, F, and G to Def.’s Mot.)(Caps in originals)

Notably, in

Defendant’s Exhibits E and F, this section appears last on the
one-page form, such that the sentence immediately preceeding
Troilo’s signature is the sentence stating, “I UNDERSTAND THAT
THE PHYSICIANS PROVIDING MY CARE ARE NOT EMPLOYEES OR AGENTS OF
THE HOSPITAL.” (Id.)
Ms. Troilo testified that she has a high school degree but
has “a hard time reading.”

(Pl’s Ex. E)

She explained at her

deposition, “[l]ike I understand what I can tell you, but I’m
slow so I really don’t know big words.” (Id.)

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It is undisputed that Dr. Michner was indeed an independent
physician utilizing Cape Regional’s facilities, and not an
employee of Cape Regional.

II.
“[S]ummary judgment is proper ‘if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.’”

Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P.
56(c)).

When deciding whether the moving party is entitled to

summary judgment, the Court must construe the facts and
inferences in a light most favorable to the nonmoving party.
Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d
Cir. 1986).

The Court’s role is not “to weigh the evidence and

determine the truth of the matter, but to determine whether
there is a genuine issue for trial.”

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249 (1986).

III.
Defendant Cape Regional moves for summary judgment
asserting that no reasonable factfinder could conclude on this
record that Plaintiffs reasonably believed that Dr. Michner was
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acting on behalf of the hospital.

As set forth below, questions

of fact preclude summary judgment at this time.
Dr. Michner’s contractual relationship with Cape Regional
as an independent contractor is undisputed.

Generally, a

principal is immune from liability for the negligence of
independent contractors. See Basil v. Wolf, 193 N.J. 38, 935
A.2d 1154, 1169 (2007).

However, under a theory of apparent

authority, liability may be imposed on a principal “not as a
result of the reality of a contractual relationship but rather
because of the actions of a principal . . . in somehow
misleading the public into believing that the relationship or
the authority exists.” Id. at 1172 (quoting Arthur v. St. Peters
Hospital, 169 N.J. Super. 575, 405 A.2d 443, 446 (Law Div.
1979)).
The standard for apparent authority has two elements: (1)
conduct by the principal that would lead a person to reasonably
believe that another person acts on the principal’s behalf; and
(2) acceptance of the agent’s service by one who reasonably
believes it is rendered on behalf of the principal.

Estate of

Cordero, ex rel. Cordero v. Christ Hosp., 403 N.J. Super. 306
(App. Div. 2008).
With regard to the first element, a factfinder may consider
the following factors to determine whether a hospital’s conduct
would lead a patient to reasonably believe that a doctor acted
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on the hospital’s behalf: (1) whether the hospital supplied the
doctor; (2) the nature of the medical care; (3) any notice of
the doctor’s independence from the hospital or disclaimers of
responsibility; (4) the patient’s opportunity to reject the care
or choose a different doctor; (5) the patient’s contacts with
the doctor prior to the incident at issue; and (6) any special
knowledge about the doctor’s contractual arrangement with the
hospital. Cordero, 403 N.J. Super. at 318-19.
With regard to the second element, “the plaintiff’s
reasonable belief may be presumed unless evidence is presented
to rebut this presumption.”

New Jersey Courts Model Civil Jury

Charge, § 5.50 Apparent Authority2 (citing Arthur, 169 N.J.
Super. at 577-78).
In Cordero, the Appellate Division denied a hospital’s
motion for summary judgment because of the hospital’s inaction
in correcting the misimpression of agency. Id. at 319-20.

The

Court reasoned that because the hospital had established a
system whereby a doctor arrived without explanation and without
any prior contact with the patient, a reasonable patient could
assume that the doctor’s services were provided by the hospital.
Id.

Without taking any action to correct that assumption, the

2

Available at https://www.judiciary.state.nj.us/civil/
civindx.htm
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Court explained, the hospital was not entitled to summary
judgment. Id. at 109.
This is a closer case than Cordero insofar as the hospital
here provided a conspicuous written disclaimer.

But Cordero

makes clear that a disclaimer is just one factor, among many,
that a factfinder must consider.

Moreover, in light of the

record evidence that Ms. Troilo has difficulty reading, a jury
could find that Troilo did not have sufficient notice of Dr.
Michner’s independence from Cape Regional, that is, that Cape
Regional did not undertake sufficient measures to provide notice
under these facts.
Also, the circumstances under which Ms. Troilo came to Cape
Regional for prenatal treatment could support the reasonable
conclusion that Ms. Troilo had no opportunity to reject the care
she received or to choose a different doctor.

See Thompson v.

Robert Wood Johnson Univ. Hosp., 2011 U.S. Dist. LEXIS 63980 at
*36 (D.N.J. June 15, 2011) (denying summary judgment on apparent
authority, stating, “[t]here is no evidence . . . that
Plaintiffs were given an opportunity to select or reject the
care provided in the pathology department [of the hospital].”),
see also Santana v. Chaudri, 2012 N.J. Super. Unpub. LEXIS 38,
at *22-23 (App. Div. Jan. 11, 2012) (“Plaintiffs’ evidence was
sufficient to present a prima facie case of apparent authority
with respect to Drs. Chaudri and Vergara, thus requiring the
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hospital to present its case in rebuttal.

The hospital will

have that opportunity at the trial on remand.”) (citing
Cordero).
Lastly, the undisputed record demonstrates that Ms. Troilo
saw Dr. Michner on only two occasions-- both times at the
hospital, never outside the hospital.

Indeed, Plaintiffs

contend that Dr. Michner’s negligence occurred during the first
visit; that by the second hospital visit, it was too late to
save Plaintiffs’ baby.

(See Opposition Brief, Docket #39 p. 4,

¶ 15)
“Questions of apparent authority are questions of fact and
are therefore for the jury to determine.”
Inc., 437 F.2d 308, 310 (3d Cir. 1971).

Gizzi v. Texaco,
Considering the

totality of the circumstances, which must be viewed in the light
most favorable to Plaintiffs, the Court holds that a reasonable
jury could conclude that Cape Regional’s actions and inactions
led Plaintiffs to reasonably believe that Dr. Michner worked for
Cape Regional.
Plaintiffs have raised material fact issues requiring
determination by a jury.

Cape Regional’s Motion for Summary

Judgment will be denied.

IV.

9 

In light of the foregoing, Defendant Cape Regional Medical
Center’s Motion for Summary Judgment will be denied.

If this

case proceeds to trial, and the jury finds Dr. Michner liable,
special interrogatories will be used to determine whether Dr.
Michner’s negligence can be attributed to Cape Regional on a
theory of apparent authority.

An appropriate Order accompanies

this Opinion.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: November 13, 2015

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